People v. Fleming CA6

Filed 11/26/13 P. v. Fleming CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039658 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1119716)

v.

FABBERRENA FAE FLEMING,

Defendant and Appellant.

Pursuant to a plea agreement, defendant Fabberrena Fae Fleming pleaded no contest to possession of cocaine base for sale (Health & Saf. Code, § 11351.5), possession of methamphetamine for sale (id., § 11378), possession of a concealed firearm by a felon (former Pen. Code, § 12021, subd. (a)(1),1 now § 29800), and being under the influence while armed with a firearm (Health & Saf. Code, § 11550, subd. (e)). Fleming was sentenced to a total term of four years and eight months in prison, awarded credits and ordered to pay various fines and fees, detailed below. We appointed counsel to represent Fleming in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Fleming of her right to submit written argument in her own behalf within 30 days. That period has elapsed, and we have received no written argument from Fleming.

1 Further unspecified statutory references are to the Penal Code.

I. FACTUAL AND PROCEDURAL BACKGROUND2 At approximately 8:45 p.m. on November 11, 2011, San Jose Police Officers Soh and Dorn, were on duty in a marked patrol vehicle in a high crime area of San Jose, California. Soh and Dorn saw a green Chrysler with expired registration near North 28 Street and Julian. The officers activated their red and blue lights and siren to signal the driver of the Chrysler to stop, but it continued “quite a distance” before eventually pulling over. The driver did not take any evasive action, but Soh testified it could have pulled over sooner. While following the Chrysler, Soh could see the person in the passenger seat, later identified as Fleming, from the shoulders up. He noticed she was bouncing up and down and shrugging her shoulders in movements he believed were consistent with pushing something down. He could not see Fleming’s hands at that time. Based on his experience and training, Soh believed the passenger’s behavior, in conjunction with the failure to immediately stop the vehicle, were consistent with an attempt to conceal a weapon or contraband. When the vehicle stopped, Soh and a third officer immediately approached the passenger side of the vehicle. Fleming was seated in the front passenger seat and Soh noticed that her pants and belt were unbuckled. He kept an eye on her in case she attempted to pull out a weapon or hide anything. Dorn told Soh they had consent to search the vehicle, so he asked Fleming to step out. As she did so, Fleming pulled her sweater and shirt over her waistband. Soh believed she was covering something and was concerned it was a weapon.